Central Administrative Tribunal - Mumbai
V S Bhave vs D/O Atomic Energy on 30 July, 2024
1 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.808/2017, 611/2017,
672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017,
799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017,
809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Dated this Tuesday the 30th of July 2024
CORAM: Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Mr. Shri Krishna, Member (A)
OA No.808/2017
Deoram V. Bavbande, Aged 59 years,
Working as Scientific Assistant 'E' in the
Glass & Advanced Materials Division of
Bhabha Atomic Research Centre at Trombay,
having been allotted Employee No.8686 and
Computer Code No.NG/548/22.
R/at 602, Acharya Gunodaya Ashish CHS Ltd.,
Cave Road, Jogeshwari (E),
Mumbai 400 060. ... Applicant
(By Advocate Shri V.A. Nagrani)
VERSUS
1. Union of India,
Through the Chairman and Secretary,
Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai 400 085.
2. The Controller, Bhabha Atomic Research
Centre, Central Complex, Trombay,
Mumbai 400 085.
3. The Deputy Establishment Officer,
2 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Bhabha Atomic Research Centre,
Central Complex, Trombay,
Mumbai 400 085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 611/2017
A.R. Gajankush, Aged 58 years,
Working as Senior Technician/J ,
Bhabha Atomic Research Centre at Trombay,
having been allotted Employee No. 7023 and
Computer Code No. NG/404/353.
Residing at D-29 Varsha, Anushakti Nagar,
Mumbai-400094. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai - 400085.
(By Advocate Shri A.M. Sethna) ... Respondents
OA NO. 672/2017
Anil Sambhaji More, Aged 55 years,
Working as Technician-G, Computer Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85,
Residing at 302 UMA CHS, Plot No. 113, Sec-19,
Khargaon Navi, Mumbai- 410210. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
3 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
1. The Union of India, Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer Bhabha Atomic
Research Centre, Central Complex, Personnel Division
Establishment-IV Trombay, Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 739/2017
Sanju Jaipalsingh Verma, Aged 49 yrs,
Working as Scientific Assistant-G, Research Reactor
Maintenance Division, Bhabha Atomic Research Center,
Trombay/Mumbai-85. Residing at 23, Gangotri,
Anushaktinagar, Mumbai - 94. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India, Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
4 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 766/2017
Shailaja N. Derebail, Aged 50 years,
Working as Scientific Assistant - G,
Reactor Engineering Division, Bhabha Atomic Research
Center, Trombay/Mumbai-85.
Residing at H-9, BARC Quarters, Chembur,
Mumbai- 400 071. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India, Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA No. 783/2017
Dhananjay Tatyasaheb Jadhav, Aged 53 years,
5 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Working as Senior Technician-G, Refueling Technology
Division, Bhabha Atomic Research Center,
Trombay/Mumbai-85,
Residing at 5-Gulmarg, Anushaktinagar, Mumbai- 400085.
... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 784/2017
K. Susila Rao, Aged 55 years,
Working as Scientific Assistant-F, Reactor Safety Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85.
Residing at B-601, Madhusudan, Devnar Baug, Inside
Dattaguru CHS, Devnar, Mumbai-88. ... Applicant
(By Advocate Shri V.A. Nagrani)
6 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer Bhabha
Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
7 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
OA NO. 785/2017
Sunita Govindan, Aged 50 years,
Working as Scientific Assistant-F, HLU/ESS Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85,
Residing at 504/6, Hill Creat, Chitalsar, Manpada,
G.B. Road, Thane(W). ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 799/2017
A.S. Bhangle, Aged 54 years,
Working as Technician-G, R.E.D, Bhabha Atomic Research
Center, Trombay/Mumbai-85.
Residing at Flat No. 25, Mandakini, Anushakti Nagar,
Mumbai- 400094. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
8 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai - 400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 800/2017
Sudhir Harichandra Gawade, Aged 52 years
Working as Technician-G Computer Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85 800.
Residing at T12/401, Pratiksha Nagar, Sion-Koliwada (E),
Mumbai-400022. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
9 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
3. The Deputy Establishment Officer Bhabha Atomic
Research Centre, Central Complex, Personnel Division
Establishment-IV Trombay, Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 801/2017
Sudhir Kumar, Aged 47 years
Working as Scientific Assistant/D Computer Division of
Bhabha Atomic Research Centre at Trombay,
having been allotted Employee No. 14512 and Computer
Code No. NG/304/237. Residing at Sanchi B-8,
Anushaktinagar, Mumbai 400094. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Secretary,
Department of Atomic Energy, North Block,
New Delhi 110001.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai. 400085.
3. The Deputy Establishment Officer, Bhabha Atomic
Research Centre, Central Complex, Trombay,
Mumbai. 400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 804/2017
Padmanabh Chimanlal Bhatt, Aged 57 years
10 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Working as Scientific Assistant- F, Material Science Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85,
Residing at 23 D, Nalanda, Anushakti Nagar,
Mumbai- 400094. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer Bhabha Atomic
Research Centre, Central Complex, Personnel Division
Establishment-IV Trombay, Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 805/2017
B.H. Ansari, Aged 61 years,
Retired Scientific Assistant-G, Division-AFD, Bhabha Atomic
Research Center, Trombay/Mumbai-85,
Residing at Flat No. 501, New Anamika, CHS, Naya Nagar,
Mira Road, Dist Thane- 401107. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
11 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer Bhabha Atomic
Research Centre, Central Complex, Personnel Division
Establishment-IV Trombay, Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 806/2017
Vihang Narayan Nandgaonkar, Aged 54 years
Working as Scientific Assistant-G Computer Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85.
Residing at 55/B Kamgar Nagar Kurla (E),
Mumbai-400024. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer Bhabha Atomic
Research Centre, Central Complex, Personnel Division
12 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Establishment-IV Trombay, Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 809/2017
S.P. Anantwar, Aged 54 years,
Working as Scientific Assistant-F, Reactor Operations
Division, Bhabha Atomic Research Center,
Trombay/Mumbai-85, Residing at 07-D, Hastinapur,
Anushaktinagar, Mumbai-400094. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer Bhabha Atomic
Research Centre, Central Complex, Personnel Division
Establishment-IV Trombay, Mumbai-400085.
... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 810/2017
Asha P. Lopes, Aged 45 years,
Working as Senior Technician-H, Division-RED,
Bhabha Atomic Research Center, Trombay/Mumbai-85,
13 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Residing at Mali Ali, Tal-Vasai, Post-Nirmal- 401301.
... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 24/2018
R.G. Kamath, Aged 44 years,
Working as S.A. G Reactor Engineering Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85.
Residing at H-3-303 Moraj Residency, Sector 16,
Palm Beach RD, Sanpara (E). ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
14 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 194/2018
Nitin Parshuram Javeri, Aged 62 years,
Working as Technical-J, Reactor Control Division,
Bhabha Atomic Research Center, Trombay/Mumbai-85.
Residing at D-211 Maitree Park CHS, Kudav Road,
Palapse Village, Panvel - 410 221. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
15 OA No.808/2017, 611/2017, 672/2017, 739/2017,
766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017,
804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
OA NO. 196/2018
V.S. Bhave, Aged 55 years,
Working as SA-F, MSD, Bhabha Atomic Research
Center, Trombay/Mumbai-85.
Residing at 13, Monalisa, Sec. 8B, CBD,
Navi Mumbai 400 0614. ... Applicant
(By Advocate Shri V.A. Nagrani)
Versus
1. The Union of India Through the Chairman and
Secretary, Bhabha Atomic Research Centre, Central
Complex, Trombay, Mumbai-400085.
2. The Controller, Bhabha Atomic Research Centre,
Central Complex, Trombay, Mumbai-400085.
3. The Deputy Establishment Officer,
Bhabha Atomic Research Centre, Central Complex,
Personnel Division Establishment-IV Trombay,
Mumbai-400085. ... Respondents
(By Advocate Shri A.M. Sethna)
ORDER
Per: Ms. Harvinder Kaur Oberoi, Member (J)
These are a group of 19 Original Applications filed 16 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. by different applicants under section 19 of the Central Administrative Tribunal's Act, 1985. The issue involved in all 19 cases is the same. Hence, they were heard together and are now being disposed of by this common order. For the sake of convenience, facts of Original Application Number 808 of 2017 (Deoram V. Bavbande v. UOI & Ors) are being discussed.
2. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"8.a) That this Hon'ble Tribunal will be graciously pleased to call for records of the case from the respondents and after examining the same quash and set aside the impugned orders dated 20.07.2016(A-1) and 26.12.07 (A-2) with consequential benefits.
8.b) That this Hon'ble Tribunal will be graciously pleased to hold and declare that the case of the applicant should be treated as deemed opted for Pension as option of 1992 and 2000 was never brought to the notice of applicant.
17 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
8.c) This Hon'ble Tribunal may further be pleased to hold and declare that since the copy of order giving last and final option vide OM No.2/1/99/SCS/665 dated October 12, 2000 is not served to the applicant individually, the applicant should now be given the opportunity to exercise the option. That this Hon'ble Tribunal will be graciously pleased to direct the respondents by a mandatory order to permit the applicant to switchover from CPF to GPF as per his request contained in his letter dated 26.08.2016.
8.d) This Hon'ble Tribunal may further be pleased to direct the respondents to treat equally to all employees irrespective of the fact whether Scientific or Technical and extend the similar benefit to the applicant as far as pension and Terminal benefit is concerned.
8.e) That the costs of this application be awarded in favour of the applicant; and
8.f) That such other and further relief as are expedient be granted in favour of the applicant."
3. Brief facts of the case as stated by the applicant are 18 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. that he was initially appointed as a Tradesman 'B' on 05.02.1982 in the office of the respondents and later was promoted as Tradesman 'E' on 14.11.1991 which was upgraded to Tradesman 'F' w.e.f. 01.05.1991. The applicant retired w.e.f. 31.05.2018 on superannuation from the post of Scientific Assistant 'E'. The applicant submits that at the time of his appointment, rules governing the respondents provided only for the contributory CPF scheme, as such he had opted for CPF scheme. That respondent DOP&T vide its OM dated 01.05.1987, had introduced the pension scheme. The scheme applied only to Civilian Central Govt Employees subscribing to CPF, under the Contributory Provident Fund rules (India) 1962. Para 6.1. of the said OM provides that a separate scheme for Scientific and Technical cadres shall be introduced.
3.1. An OM dated 12.10.1992, i.e. Scheme for Pensionary/Terminal benefits for Scientific and Technical Personnel, hereinafter referred to as S&T Personnel, working in the Departments of Electronics, Department of Atomic Energy and Department of Space was introduced. This 19 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. scheme of 1992 was modified vide their OM dated 23.07.1996 which was divergent and in some way contrasting to the scheme of 1992. Yet again, in the year 2000, the pensionary scheme was re-introduced. The applicant has submitted that this OM dated 12.10.2000 was never served upon the affected employees and as such the applicant and many others could not submit their option for Pension. The applicant contends that he subsequently learned that many of his colleagues who had joined the service around the same time when he had joined had been given the option to switch over from CPF to GPF with Pensionary benefits in pursuance of OM dated 12.10.2000. As such applicant submitted representation dated 11.07.2001, with a request to permit him to switch over from CPF to GPF. The same was rejected vide order dated 01.08.2001 stating that "his option for conversion from CPF to GPF cannot be acceded to as he has not opted it within six months from the date of issue of DAE OM No.2/1/1999-SCS/665 dated 12.10.2000". The applicant submitted another representation dated 05.07.2016, stating that as per Fundamental and 20 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. Supplementary Rules, the OM dated 12.10.2000, should have been served upon the applicant, which was not done. The applicant received a reply dated 06.06.2016 from the respondents stating that all the circulars are displayed on the Notice Board for the information of employees. The said circular was circulated by Adm.I Section vide Endorsement No.7(1)/2000-Adm/113 dated 02.11.2000. Further employees in various divisions exercised their options based on the circular.
3.2. According to the applicant a committee was formed in the year 2016, which went into detail on all aspects of the matter and even gave its recommendation in favor of the employees but the recommendation of the committee was rejected by respondents on extraneous considerations vide order dated 20.07.2016 which is under challenge in the present OA.
3.3. The applicant states that the circular dated 12.10.2000 was never brought to the notice of the Applicant and he had no knowledge about the same. Therefore, he could 21 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. not submit an option to switch over from CPF to GPF with pensionary benefits within the stipulated time.
4. After issuance of notices, respondents have filed their reply and have stated that the applicant has raised his claim for the Pension Scheme much belatedly. Respondents submit that inordinate delay caused in such matters would be fatal to the interest of the applicant. The options for shift to GPF scheme from the CPF were finally called by them vide OM dated 12.10.2000, and the applicant failed to submit his option, now that the period prescribed for submitting the option i.e. six months has elapsed, the applicant cannot seek opportunity to shift over to the Pension Scheme. Respondents submit that it is an established policy that no further option to shift from CPF to Pension Scheme could be made available to the employees given the mounting pension liability. It is submitted that the OA of various Applicants before this Hon'ble Court can be, on the basis of the facts and reliefs claimed there under, divided in three distinct categories:
"(1). Firstly, the Applicants are challenging the 22 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
decision of the Respondents to not accept the Switch over from CPF to GPF. In such cases the Applicants challenge the Respondents' decision mainly on the ground that they were not individually informed of the OM dated 12.10.2000 and that they could not exercise the option of the said OM as the same was never brought to the notice of the said Applicants. This issues arises in OA No.806/2017, inter alia, filed by Shri Vihang Nandgaonkar, OA No. 804/2017 filed by Shri Padmanabh Bhatt; OA No. 766/2017 filed by Smt. Shailaja Derebail; OA No. 799/2017 filed by Shri A.S Bhangale; OA No. 800/2017 filed by Shri Sudhir Gawade; OA No. 809/2017 filed by Shri S.P Anantwar; OA No. 810/2017 filed by Smt. Asha Lopes; OA No. 783/2017 filed by Shri D.T Jadhav; OA No. 24/2018 filed by Shri R.G Kamath; OA No. 784/2017 filed by Smt. Susila Rao; OA No. 805/2017 filed by Shri B.H Ansari; OA No. 739/2017 filed by Shri S.J Verma; OA No. 785/2017 filed by Smt. Sunita Govindan; OA No. 801/2017 filed by Shri Sudhir Kumar.
(2). Secondly, the OA No. 795 of 2017 filed by Shri Shankar N. Trimukhe . In the said OA the Impugned Order/letter dated 13.02.2007 whereby the Respondents conveyed to the Applicant that his requests to switch over from CPF to GPF scheme 23 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. cannot be acceded to as he is governed by CPF Scheme vide his option dated 25.08.1992 on his confirmation in the grade of T/C. In the month of March, 2000 due to coding error alphanumeric data was changed from CPF to GPF which was rectified in the month of June, 2006 and it was confirmed that the said Applicant is still governed by CPF Scheme.
(3). Thirdly, OA No. 808 of 2017 filed by Shri Deoram Bavbande (Applicant). In the said OA pursuant to having known about the OM dated 12.10.2000 the said Applicant filed a Representation dated 11.07.2001 and the same was replied by the Respondents vide letter dated 01.08.2001 intimating him that his Representation was not made within the stipulated period of 6 months provided for in the OM dated 12.10.2000. In view thereof, his request for a switchover from CPF to GPF could not be accepted. The said Applicant did not challenge this decision of the Respondents, dated 01.08.2001. However, he chose to make subsequent Representations dated 30.10.2007, the latest one being 05.07.2016. As the said subsequent Representation made in 2007 and 2016 were on the same cause of action as the one made in 2001, rejected vide letter dated 01.08.2001, which was not challenged OA No.808/2017, 611/2017, 672/2017, 739/2017, 24 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. by the Applicant, the Respondents rejected his request by subsequent letters dated 26.12.2007 and 20.07.2016 respectively.
4.1. The Respondents submit that all the aforesaid OAs are filed belatedly and are thus barred by limitation under section 21 of the Administrative Tribunals Act, 1985. A bare perusal of the OA would show that there is no reason and/or justification to constitute sufficient cause to warrant condonation of such inordinate delay-and-laches on behalf of the Applicants herein. In this context, the Respondents gainfully rely on the following decisions of various courts including the Apex Court in support of its proposition that cause of action necessarily barred by limitation under any statute cannot be made alive by making Representation.
Following are the relied upon case law:
"A. Rajendra Kumar vs. (MANU/RH/0559/2013) Union of India & Ors.
B. Geeta Devi vs. Rajasthan State Road Transport Corp. & Ors. (MANU/RH/0961/2017) C. B.N Ghildyal vs. the Union of India & Ors.
25OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. (MANU/HP/0036/1978) D. S.S Rathore VS. (MANU/SC/0002/1990) State of Madhya Pradesh.
E. Rajesh Sule & Ors. Vs. Union of India (MANU/CA/0539/2016) F. Shankara Co-op Housing Society Ltd. vs. M. Prabhakar & Ors. (MANU/SC/0564/2011)".
4.2. It is contended the OM dated 12.10.2000, categorically spells out that it is mandatory to exercise the option of conversion from CPF to GPF, as a special case within a period of 6 months from the date of the issuance of this OM.
It is pertinent to note that the OM is not challenged by any of the Applicants thus it is clear that having accepted the said OM, the Applicants are obligated to follow the timelines laid down under it, to obtain the benefit as a special case. The OM confers no discretion whatsoever on the Respondents to condone the delay in exercising the option which is so done within 6 months from the issuance of the said OM.
4.3. On merits, it is stated that that the OM was sufficiently communicated by a circular dated 02.11.2000 which was displayed by all the concerned divisions on the 26 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. notice board for the Employees information. Thus, the OM was very much within their information and knowledge. In fact, many employees besides the Applicants in the said OAs diligently exercised their option, duly communicated vide circular dated 02.11.2000.
4.4. In the second category of OA, respondents relied upon the impugned Order dated 13.02.2007, to explain their stand. Respondents vide the impugned letter dated 13.02.2007 have stated that it was only due to a coding error that alphanumeric data was changed from CPF to GPF which was rectified in June 2006. The said Applicant is estopped from taking advantage of an inadvertent error. As the OM dated 12.10.2000 was sufficiently communicated to all the employees, the Applicant being aware of the same cannot seek refuge under inadvertent error on the Respondent's part which was in any case rectified in June 2006.
4.5. As far as the third category of the OA is concerned, respondents stated that Applicant has made a Representation on 11.07.2001 (by hand) with a request to convert from CPF to 27 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. GPF scheme. The Respondents vide letter dated 01.08.2001 replied to him setting out that his request for such conversion cannot be accepted as the same was not made within the specific period of 6 months from the date of issue of OM dated 12.10.2000, as categorically set out therein. The said rejection by the Respondents vide its letter dated 01.08.2001 was not challenged by the Applicant and, therefore, the same attained finality. However, the said Applicant by taking a chance once again on the same cause of action, under the same facts and circumstances, made further two Representations dated 30.10.2007 and 05.07.2016 requesting to switchover from CPF to GPF. Since the earlier request made in 2001, was already declined, by the Respondents and there was no change in facts and circumstances. The Respondents reiterated its decision to decline the request vide its reasoned letter dated 26.12.2007 and 20.07.2016 respectively. The respondents have submitted that the applicant has positively opted to continue in CPF scheme by submitting the option form on 25-10-1989 by stating that he opted to retain Contributory Provident Fund 28 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. benefits. Therefore, the applicant having failed to switch over to GPF within the time limit prescribed by the OM dated 12.10.2000 cannot claim now that he should be allowed to switch over to the Pension scheme.
4.6. It is submitted that a committee was constituted in 2016 to look into the issue of allowing one more chance to the 393 employees who could not exercise the option to switch over to the pension scheme. It was seen that switch over will involve a total financial implication of (-) Rs. 31,43,93,777/-
(Rupees Thirty One Crore Forty three lakhs, seven hundred seventy seven) towards write back of Government Contribution to Government and the annual financial implication when all employees start getting pension will be Rs.10,92,88,188/-(Rupees Ten crores Ninety Two Lakhs eighty eight thousand one hundred eight eight). The Additional Secretary to the Government of India, Deptt. of Atomic Energy with the approval of the Secretary of DAE sent the proposal to the DP&PW on July 11, 2016. The above recommendations after consultation with the Ministry of 29 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. Expenditure were not agreed to by the Ministry of Personnel, Public Grievances and Pensions, DP&PW. Hence the OA be rejected.
5. In rejoinder, applicant has relied upon an order dated 11th January, 2005 passed by a Single Member Bench of this Tribunal in the case of Kishorchandra J. Panchal Vs. Union of India & Ors. in OA No.211/2004 and information received under RTI vide letter dated 21.07.2017 which states that 116 employees have opted for switching over from CPF to GPF in response to OM dated 12.10.2000, and also submitted copy of OM dated 04.10.2007 issued by the Department of Atomic Energy and OM dated 12.10.1992 issued by the DP&PW. The OM dated 04.10.2007 provides that Scientific Employees who joined DAE on or after 01.08.1992 and a technical employee promoted to a scientific post on or after 01.08.1992 shall be eligible to opt to the pension scheme before completing 20 years of qualifying service as a scientific Officer.
30 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
6. The respondents have filed sur-rejoinder enclosing copies of the judgment of Hon'ble High Court of Madhya Pradesh dated 16.07.2014 in W.P. No.9146/2012 and CAT Jabalpur order dated 15.11.2018 in OA No.201/00706/2017 in support of their contention that the claim of the applicants cannot be allowed as the similar claim in respect of the employees of the respondent department has been rejected by the CAT Jabalpur as well as by the Hon'ble High Court of Madhya Pradesh.
7. The applicant has filed a Miscellaneous Petition for the production of documents which was obtained under RTI Act in respect of one Shri A.M. Bhaskaran who was posted at BARCF, Kalpakkam and similarly placed as applicant was allowed NOC to switch over from CPF to GPF vide order dated 16.10.2018.
8. The Respondents filed a reply to the Miscellaneous petition filed by the applicant and stated that the case of Shri A.M. Baskaran of PRPD, Kalpakkam, is entirely different from the case of the Applicant.
OA No.808/2017, 611/2017, 672/2017, 739/2017, 31 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
9. Before going into the merits of the case, we feel it necessary to note the historical factual matrix as under :-
9.1. In terms of DAE O.M. No. 37/55/63-T.II (A) TE dated 17.01.1967, all Technical personnel in the Department of Atomic Energy shall, on their confirmation in the permanent technical post, have the option to either:
a) Continue to subscribe to CPF in which case they shall not be entitled to any pension; or
b) to elect pensionary benefits in accordance with the terms and conditions given in the Rule 38 of the CPF Rules (India), 1962.
c) The option shall be exercised and communicated to the Head of the office concerned within 3 months from the date of issue of this OM or the date of the order appointing such an officer to a permanent post whichever is later.
d) If no specific option given, deemed to have opted for Pension.
9.2 Two decades later DOP&T vide its OM dated 01.05.1987, had introduced the pension scheme. The scheme applied only to Civilian Central Govt Employees subscribing to CPF, under the Contributory Provident Fund rules (India) 1962. Para 6.3. of the said OM provides that a separate scheme 32 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. for Scientific and Technical cadres shall be introduced.
9.3 The Department of Pension and Pensioners' Welfare (DP&PW) vide their Ο.Μ. Νο. 4/1/87-P & PW (PIC II) dated 12.10.1992, formulated a uniform policy for Scientific and Technical Personnel (S&T). As per this OM, in respect of those S&T employees who were in service as on 01.08.1992 and had not completed 20 years of qualifying service on that date and were in CPF scheme will have one option to be exercised at any time but not later than completion of 20 years of qualifying service, to switch over from CPF to Pension scheme or to retain the CPF scheme, as they may wish.
9.4. However, on a review of the matter, the DP&PW vide its O.M. No. 4/1/87-P&PW (PIC-II) dated 23.07.1996, ordered to maintain status quo ante as prevailing before issue of its earlier O.M. dated 12.10.1992, in respect of those S&T personnel who were in service as on 01.08.1992. This essentially meant that, the technical personnel who were in service as on 01.08.1992 are governed by the conditions for opting CPF/GPF prevailing before the issue of the DP&PW 33 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. O.M. dated 12.10.1992, i.e. OM dated 17.01.1967.
9.5. DAE, in consultation with DP&PW, extended one more final option to all technical personnel in the Department who had joined service before 01/08/1992 and had not completed 20 years of service and were still in CPF scheme to come over to the Pension Scheme as a "Special Case", vide O.M. No. 2/1/99/SCS/665, dated 12.10.2000. The option was to be exercised within 6 months from the date of Issue of the OM No. 2/1/99/SCS/665, dated 12.10.2000. The said DAE O.M. was circulated to all the employees of BARC vide endorsement No. 7(1)/2000-Adm/113 dated 02.11.2000. In response, approximately 170 technical personnel exercised their options to switch over from the CPF scheme to the Pension Scheme.
9.6. Now coming to the similarity being drawn by applicants with Shri M. Baskaran. Shri M Bhaskaran had joined as Scientific Assistant/B (SA/B), at the relevant point of time, in Propulsion Reactor Project Division (PRPD), of Bhabha Atomic Research Centre (BARC), Kalpakkam, another 34 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. Constituent Unit of Department of Atomic Energy (DAE). He was confirmed in grade of SA/B w.e.f. 07.10.1992. The O.M. No.2/1/99/SCS/665 dated 12.10.2000, was not displayed in PRPD, BARC, Kalpakkam, therefore, Shri M. Baskaran could not exercise an option within stipulated date.
9.7. Department of Atomic Energy (DAE) had taken up the matter with DP&PW vide ID note no. 28/3/2013- SCS/VOL.IV/5180 dated 23.04.2014, citing the fact that the OM dated 12.10.2000 was not displayed in PRPD, Kalpakkam and hence Shri Baskaran was deprived of pension. In response, DP&PW vide note dated 19.03.2015, replied that there is no justification to reopen the case, as Department had already given many opportunities to Scientific and Technical employees of Department of Atomic Energy, Department of Space and Department of Electronics to switch over to pension scheme vide Department's OM dated 12.10.1992, 23.07.1996 and DAE's OM dated 12.10.2000.
9.8. In the meantime, Shri Baskaran had approached National Commission for Schedule Castes (NCSC), New Delhi 35 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. for redressal of his grievance. NCSC vide their Record Note of discussion held on 28.07.2016 observed that the case of Shri Baskaran is separate from other cases as the Circular was not given in the case of Shri Baskaran and recommended that Shri Baskaran case should be considered by DP&PW. As per the directives of NCSC, New Delhi, the Department vide note dated 09.09.2016, and 25.07.2019 sent a proposal to DP&PW requesting to consider the case for grant of one more option to Shri Baskaran to switch over from CPF to GPF scheme.
DP&PW vide their OM dated 06.07.2018 conveyed no objection to DAE taking an administrative decision for giving the same opportunity to Shri Baskaran, to switch over to Pension Scheme, in relaxation of the timelines prescribed by the Department itself with their OM dated 12.10.2000.
Accordingly, Department allowed Shri Baskaran one more option to switch over from CPF to Pension scheme in the light of the 'NOC from Nodal Department (DP&PW) relating to time limit.
10. During the course of the arguments learned 36 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. counsel for the applicant, Mr. Nagrani, reiterated the averments made in the OA, rejoinder and additional affidavit.
He submitted that most of the applicants have already retired and only 2-3 might be in service now. The decision of the respondents not to allow switch over from CPF to GPF was discriminatory. He submitted that the Department of Electronics and Space have adopted the system of acknowledgment. That is each employee was served with the circular there and acknowledgment was received. This system was not adopted by the respondents, even though same was adopted by sister department, under the same ministry. If respondents had taken care applicants could have been aware of the option and would have exercised the same.
11. Counsel further argued that a committee was constituted on 11.07.2016 and it recommended for giving one more chance to the 393 leftover employees. However, the DoPT in consultation with the Ministry of Expenditure rejected the request for switching over from CPF to GPF.
12. He further submitted that 1992 OM did not 37 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. mention six months' time limit and, therefore, OM dated 12.10.2000, (which emanates from the 1992 OM) could not impose a time limit.
13. He submitted that the applicant joined after 01.08.1992 so in view of July 1996 OM, OM of 1992 did not apply to the applicant. He submitted that a fair option should have been given to the applicant which was given to the employees of Department of Electronics and Department of Space. It was submitted that Mr. Bhaskaran of Kalpakkam and four others were allowed to switch over by the Madras Bench of this Tribunal in OA No.310/0135/2018 dated 10.10.2018. The order of the Tribunal has been accepted by the Department. Therefore respondents ought to give the applicants same treatment.
14. On the question of delay and laches, Mr. Nagrani submitted that the applicant made first representation on 12.07.2001 for switching over from CPF to GPF. It was further submitted that the Department of Atomic Energy vide letter dated 23.04.2014 has recommended to the DP&PW to grant 38OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. one more fresh option to the employees to switch over from CPF to GPF. However, the same was not accepted by the DP&PW in consultation with the Ministry of Expenditure.
Thereafter, he was pursuing his case and he made representation on 05.07.2016 as the department was considering the case of the other employees similar to the applicant which is evident from the report of the Committee dated 11.07.2016. It was only after the DoPT in consultation with the Ministry of Expenditure rejected the recommendation dated 11.07.2016 of the Departmental Committee that the applicant filed the OA in 2017. He submitted that the very fact that the Committee was constituted and made a recommendation on 11.07.2016 shows that the issue was alive. That applicant has been deprived of his legitimate right.
15. He submitted that there is discrimination between Scientific employees vis-à-vis Technical employees. The 1992 OM has allowed an open-ended open to the scientific employees, whereas the option has been limited to six months 39 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. in case of technical employees by the OM of 2000. He further submitted that the respondents cannot take the plea of financial burden. It was submitted that the delay in filing the OA is because the matter was under consideration of the respondent department and, therefore, the OA is not barred by delay and laches.
16. Mr. Nagrani placed reliance on the decision of the Madras Bench of Tribunal in the case of S. Subbaih Vs. D/o Atomic Energy in OA No.1766/2013 dated 31.03.2015 and order dated 05.01.2017 in which it was held that restriction for six months was without authority. He placed reliance on the decision of Hon'ble Supreme Court in the case of Hari Kishore Sharma Vs. State of Rajasthan & Others, 2011 SCC Online Rajasthan dated 21.10.2011 and Dakshin Haryana Bijli Vitram Nigam and Others Vs. Bachan Singh, (2010) 1 SCC (L&S) 463.
17. Shri A.M.Sethna, learned counsel for the respondents has vehemently opposed the submissions of Mr. Nagrani. He submitted that the judgment cited by the Mr. Nagrani did not consider the Doctrine of constructive notice.
40 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. He submitted that the applicants are posted in the same campus of Trombay where 113 employees have exercised option. Thus, Doctrine of Constructive Notice applies. He submitted that the applicant Deoram V. Bavbandee was working as Scientific Assistant 'E', Glass & Advanced Materials Division of BARC at Trombay, Mumbai which is in the BARC campus Trombay, Mumbai where 113 employees have exercised the option. He submitted that the applicant had consciously opted for CPF Scheme in 1989, by submitting the option form.
18. Mr. Sethna submitted that the applicant has not challenged first rejection order dated 01.08.2001 which rejected the applicant's representation dated 12.07.2001. This rejection order dated 01.08.2001 has never been challenged by the applicant. Applicant's option form submitted in 1989 to opt for CPF benefits coupled with the fact that 113 employees of the same division have opted for switch over from CPF to GPF under OM dated 12.10.2000 shows that the applicant had constructive notice. He placed reliance on the decision of the 41 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. Hon'ble High Court of Madras dated 02.11.2011 in Writ Petition No. 29371 of 2008 in the case of P.Sundaramurthy Vs. Union of India & Others. The SLP against the said judgment of the Hon'ble High Court of Madras already dismissed on merits and, thus, the above decision has attained finality. He further placed reliance on the decision of the Madras Bench of Tribunal dated 15.11.2022 in OA No.1241/2019 in the case of V.Kumaran Vs. Union of India & Ors. These cases pertain to the respondent Department of Atomic Energy and, therefore, are squarely applicable. He submitted that the applicant has never challenged the OM dated 12.10.2000 which prescribed the time limit of six months. Therefore, in the absence of a challenge to the OM dated 12.10.2000, the OA of the applicant deserves to be dismissed with costs.
19. Mr. Sethna further submitted that the it was a policy decision of the Government of India to not extend the option beyond six months and, therefore, the Department of Personnel, Public Grievance and Pension in consultation with the Ministry of Expenditure rejected the recommendation of 42 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. the committee of the Department of Atomic Energy and the same has attained finality. He submitted that in the policy matters of the Government of India involving huge expenditure, the Tribunal should not interfere. He submitted that the Government of India has taken a policy decision and, therefore, it cannot be interfered with, and that too in the absence of the complete challenge of the OM dated 12.10.2000.
He relied on the decision of the Madras Bench of Tribunal dated 11.11.2022 in OA No.1193/2019 in the case of V. Chandrashekhran Vs. Union of India and others, Department of Atomic Energy. The decision has not been challenged so far and, therefore, the same has attained finality.
19.1 Mr. Sethna further submitted that given the above decisions of CAT Bench of Madras, High Court of Madras and the decision of Jabalpur Bench of CAT and Hon'ble High Court of Madhya Pradesh directly dealing with the employees of Atomic Energy, the OA is devoid of any merits and deserves to be dismissed with costs.
20. Heard the learned counsels for the parties and 43 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. carefully perused the pleadings, documents filed on record, and judgments/orders relied upon by the parties.
21. On 01.05.1987, UOI/DOP&T issued the OM dated 01.05.1987, under the 4th CPC recommendations, by which option was given to Central Govt employees to switch over from the CPF Scheme to the Pension Scheme by 30.09.1987. Para 6.1 of the said OM stated that a separate scheme would be issued for the Scientific and Technical staff and it is in pursuance to the same that DOP&T introduced the OM dated 12.10.1992. The said OM dated 12.10.1992 reads as under;
"No.4/1/87-P&W(PIC-II) dated 12.10.1992 The undersigned is directed to refer to para 6.1 of this Department's O.M. Of even number st dated the 1 May, 1987 on the subject mentioned above and to say that the proposal to formulate a uniform scheme for Scientific & Technical Personnel (hereinafter referred to as S&T Personnel) has been under examination in consultation with the Department of Space, Department of Atomic Energy and Department of Electronics.
2. The following uniform policy will apply to S & T personnel in the Department of Space, Department 44 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
of Atomic Energy and Department of Electronics:-
i) All S&T Personnel joining Department of Atomic Energy, Department of Space and Department of Electronics and such other scientific Departments as have adopted the system prevailing in the Department of Atomic Energy will initially be appointed on CPF Scheme.
ii) The S&T Personnel will have one option to be exercised any time but not later than completion of 20 years qualifying service to switch-over from CPF to Pension Scheme or to retain the CPF Scheme as they may wish.
iii) Those who do not exercise any option within the period specified above will be deemed to have retained the CPF Scheme.
iv) The option once exercised will be final. Those who have opted in favour of Pension Scheme will not be allowed to re-opt in favour of CPF Scheme.
3. The new Scheme mentioned above will apply to all S&T personnel who join the Departments of Atomic Energy, Space and Electronics as fresh entrants after st 31 July, 1992. As far as those already in service on 01.08.1992 are concerned, their cases will be regulated in the following manner:-
i) Those who have completed 20 years qualifying st service on 1 August, 1992 and are still on CPF Scheme, will exercise the option referred to in the preceding paragraph within six months of the issue of these orders. The option once exercised shall be final. Those who do not exercise any option will be deemed to have retained the CF Scheme.
45 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
ii) The cases of those who have not completed st 20 years qualifying service on 1 August, 1992 and are still under CPF Scheme on that date, will be regulated as for fresh entrants in terms of provisions of paragraph 2 above provided that the case of those who will be completing 20 years qualifying service within six months of the issue of these orders, the option may be exercised within the said period of six months. (emphasis supplied)
iii) Such of the S&T personnel as have already opted for pension Scheme under the instructions in force before issue of these orders shall continue to remain under the Pension Scheme. They will not have any further option to re-opt in favour of the CPF Scheme.
4. The Department of Atomic Energy etc. are requested to bring these orders to the notice of all S&T personnel working under them".
22. The applicant, who was initially appointed on 05.02.1982, was yet to complete 20 years of service on 12.10.1992 when the above OM was issued as such as per 3(ii) of the above OM he would be covered under provisions of para 2. The provisions of para 2(ii) of the said OM provide as under:-
"2(ii) The S&T Personnel will have one 46 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
option to be exercised any time but not later than completion of 20 years qualifying service to switch- over from CPF to Pension Scheme or to retain the CPF Scheme as they may wish".
23. Meaning thereby that the applicant, who incidentally belongs to the technical cadre, could have exercised the option before completing 20 years of qualifying service. Thus, bringing him at par with Scientific staff.
24. The above scheme was modified in 1996 in total contrast to the scheme of 12.10.1992. The OM dated 23.07.1996 was issued and the same reads as under;
"Dated 23.07.1996 Office Memorandum .....The undersigned is directed to refer to his Department's OM dated 12.10.1992 on the subject mentioned above and to say that the Scheme or Pensionary/Terminal benefits for Scientific and Technical Personnel, hereinafter referred to as S&T Personnel, working in the Departments of Electronics, Department of Atomic Energy and Department of Space has been further reviewed by the Government in consultation with the-se departments. As a result of this review, it has been decided to maintain status quo ante, as prevailing prior to the issue of above mentioned orders, in respect of the pensionary/terminal benefits 47 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
admissible to Scientific and Technical personnel in the 3 Departments who were in service as on 01.08.1992. They will continue to be governed in the matter of their pensionary/terminal benefits by the orders issued by the respective departments from time to time".
25. In effect vide the OM dated 23.07.1996, the decision of 12.10.1992 was reversed and the status of the scientific and technical cadres of the three departments i.e. Departments of Electronics, Department of Atomic Energy and Department of Space, was turned to that as it was before the promulgation of OM dated 12.10.1992 i.e. In terms of DAE O.M. No. 37/55/63-T.II (A) TE dated 17.01.1967, all Technical personnel in the Department of Atomic Energy shall, on their confirmation in the permanent technical post, have the option to either:
a) Continue to subscribe to CPF in which case they shall not be entitled to any pension; or
b) to elect pensionary benefits in accordance with the terms and conditions given in the Rule 38 of the CPF Rules (India), 1962.
c) The option shall be exercised and communicated to the Head of the office concerned within 3 months from the date of issue of this OM or the date of the order appointing such an officer to a permanent post whichever is later.
48 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
d) If no specific option given, deemed to have opted for Pension.
26. Subsequently respondents had a change of heart once again, but this time only for the Technical Cadre, OM dated 12.10.2000, came into being. It is pertinent to mention here that this OM of 12.10.2000 was issued for the technical staff of the Department of Atomic Energy only excluding Departments of Electronics and Department of Space, the same reads as under:-
"No.2/1/99/SCS/665 October 12, 2000
OFFICE MEMORANDUM
Sub: Change over of the Central Government employees from the Contributory Provident Fund Scheme to the Pension Scheme - option reg.
The undersigned is directed to refer to the department of Pension & Pensioner's Welfare OM No.4/1/97-P&PW(PIC-II) dated 23.07.1996 on the captioned subject and to state that the matter regarding extending one more option to switchover to pension scheme in respect of technical employees of the department who joined service prior to 01.08.1992 and have not completed 20 years of qualifying service on 23.07.1996 and not exercised option to come over to pension scheme was taken up 49 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
with the nodal Ministry.
2. Accordingly, in consultation with the department of Pension and Pensioner's Welfare, it has now been decided to extend one more final option to all the Technical personnel of the Department of Atomic Energy who joined service prior to 01.08.1992 and have not completed 20 years service and are still in CPF to come over to pension scheme as a special case. The option has to be exercised within a period of six months from the date of issue of this Office Memorandum.
Sd/-
(O. Bharathan) Under Secretary to the Govt. of India"
27. This OM dated 12.10.2000, is claimed by the respondents as the last chance afforded by the respondents, to the employees of the technical cadre of the department of atomic energy, to exercise option to switch over from CPF to GPF/Pension Scheme. The OM dated 12.10.2000, was received /endorsed in month of November by the respondents themselves, as such one month was exhausted even before it was circulated. Applicant opted for the GPF Scheme in July 2001, just about 2-3 months after the time had elapsed. The 50 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. respondents rejected the request of the applicant, stating this option for conversion from CPF to GPF cannot be acceded to as he has not opted within six months from the date of issuance of OM dated 12.10.2000.
28. Applicant claims to have again opted for the GPF Scheme in the year 2007 which was rejected by respondents vide their order dated 26.12.2007, on the ground that the same was not available to the applicant as he was from the technical cadre and time had elapsed. Perhaps while rejecting the claim respondents meant to refer to the OM dated 12.10.1992 which had provided for options to both Scientific and Technical cadre to be exercised anytime before completion of 20 years of service alternatively to the OM dated 12.10.2000 which had restricted the exercise of option limited to six months only. Be that as it may, for the first time a category of technical officers in the Department of Atomic Energy, was created by the respondents, a category that would be bound by the six-
month time limit, whereas the Scientific Cadre had no such limits since they could exercise their option before completion 51 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. of 20 years of qualifying service. This different treatment was not the intention of DOP&T, when they had issued the OM 12.10.1992, which had intended to treat the Scientific and Technical cadres of all three departments equally. However, the OM dated 12.10.2000 which is the root cause of the issue at hand has not been challenged by the applicant. Therefore, in absence of a specific challenge to the OM no relief can be given to the applicants on grounds of discrimination.
29. Applicant, has also brought on record a letter dated 23.04.2014 issued with the approval of the Secretary DAE, which records that this time limit of six months imposed vide OM dated 12.10.2000 was extended by another three months, however, no specific order in this record is available and respondents, when asked to file a specific response to this letter, have filed additional affidavit and state therein that this recording by the officer in the said letter about extension of time by three months is an error of fact and deny the same.
30. Since the applicant and many others could not avail of the chance, many representations were received by OA No.808/2017, 611/2017, 672/2017, 739/2017, 52 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. respondents who ultimately decided to form a committee in the year 2016, to look into the issue. The committee deliberated upon the issue in detail and recorded its th deliberations on 11 June/July, 2016 which reads as under:-
"..............In order to understand the issue that why they remained in CPF and justify the conversion from CPF to GPF, the request details and reasons are submitted herewith for perusal;
st 1 DP&PW OM dated 23.07.1996 had the effect of taking away option from those who had joined service before 01.08.1992 but yet not completed 20 years.
nd 2 Since, the DP&PW OM dated 12.10.1992 was in vogue when DP&PW issued OM dated 23.07.1996 as Department had extended option against DP&PW's OM dated 12.10.1992, time to time upto 31.12.1996. So, whoever was near to complete 20 years by 23.07.1996, would have acted in time and opted against 12.10.1992 order to come over to pension. Secondly, those who joined on or after 1.08.1992 were also having option to act before completion of 20 years service. Whereas, 1996 order, had the effect of taking away option available at para 3(ii) of OM dated 12.10.1992, from only those who joined service before 01.08.1992 and not completed 20 years service by 23.07.1996. They would not have opted against 1992 order, since they were having much more time to complete 20 years. Eventually, for giving option to such employees only Department approached DP&PW in 2000, and DP 53 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
& PWR agreed for the same.
rd 3 Department has received information from number of Units stating that some of their employees could not opt against 12.10.2000 DAE OM because they were not aware of this order asthey were working in remote/restricted areas or otherwise. Department had collected information of all such employees while considering one representation to National Commission for SC. There are number of cases who would not opt against 2000 order for various reasons.
th 5 . The OM dated 12.10.2000 had stipulated the fixed time limit of 6 months to opt. In this context, it may be noted that the reference of DAE vide D.O letter dt. 09.05.2000 to DP & PW was to restore the advantageous clause contained in Para 3 (ii) of the DP & PW O.M. dt. 12.10.1992 to those Technical employees who joined prior to 01.08.1992 and not completed 20 years before 1996 order and still were in CPF. The DP & PW allowed option vide their letter No.20/1/2000-P&PW(F) (Vol.II). The DP & PW did not stipulate any fixed time limit to exercise option, extending the clause 3 (ii) of DP & PW O.M. dt. 12.10.1992 as it was existed to all those employees joined service prior to 01.08.1992.
th 6 . Dept of Electronics and Dept. of Space have taken corrective actions in this regard. Details of orders issued by DoS and Dept. Of Electronics giving options to their staff using their special rights acquired under Government of India (Allocation of Business) Rules 1961, are as follows:
54 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
A. Two orders issued by Department of Space (DoS) with the approval of the then M(F), AEC, as detailed below have covered all the S & T employees and granted chance to come over to Pension to all:
i) OM No 2/10(2)/87-I(Vol-V) dated 30.05.1997 (Annexure-18) extending option to switch over from CPF to GPF/Pension Scheme for those S&T personnel, who had joined service before/on or after 01.08.1992.
ii) OM No.2/10/20/87-I(Vol.VIII), dated 19.04.2006 (Annexure-19), extending option to switch over from CPF to GPF/Pension Scheme for those S&T personnel, who had joined service prior to 01.08.1992 and not completed 20 years of service as on 01.08.1992 but had specifically opted to retain the CPF Scheme.
Thus, covering all the remaining personnel in CPF Scheme. As per the said O.M., this option was necessary to correct the earlier wrong administrative instruction.
B. Dept. Of Electronics, vide O.M. No.2(4)/91- PP dated 11.12.1996 (Annexure-20), extended additional option to all S&T who were in service as on 01.08.1992, to be exercised before they leave the Dept. by retirement or otherwise to those whom option was available as per DP & PW order dated 23.07.1996.
6. Taking into consideration all the above factors, Department is recommending to consider bringing all the CPF holders in Technical Cadre under Pension scheme by transferring their CPF account 55 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
balance to GPF account after repaying back the Government contribution into Government Account, by following CPF Rule 38."
(emphasis supplied)
31. In this manner, the respondent department after considering the issue in its entirety, had recommended the case of the applicants and all other employees to be allowed to switch to GPF, who could not exercise the option to switch in time to the Department of Pension and Pensioners Welfare, Ministry of Personnel, Public Grievances and Pension being the nodal Ministry about the pensionary matters.
32. It is thus, the contention of the applicants that once the option dated 12.10.2000 was not circulated properly, and secondly the same was limiting in nature as it provided for a time limit of six months only which is against the spirit of the OM dated 12.10.1992, and being a subordinate legislation could not have been at variance or limiting the main OM itself. Concerning the respondent's plea of delay, the applicants argued that once the committee had recommended the cases of the employees the applicants had a legitimate 56 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. expectation that they would be granted the said benefit, however, when the same was rejected by the competent authority they immediately approached the tribunal by way of the present OA and therefore there is no delay.
33. We are convinced that Applicants case cannot be rejected on delay in approaching the tribunal. Pension being a recurring cause of action and also that respondents we reconsidering as late as in the year 2016.
34. The learned counsel for the respondents placed reliance on the decision of the Madras Bench of this Tribunal th in OA No.1241/2019 decided on 15 November 2022. In the said case, the applicant contended that the decision of the respondents was discriminatory in the light of such option allegedly allowed for persons coming under the scientific category without any time restriction and those who moved from technical to scientific stream on promotion within a time limit of 20 years. Such discrimination is not permissible being violative of Article 16 of the Constitution of India. The Madras Bench after considering the arguments of both sides as held in 57 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. para 6, 7 and 8 of the judgment as under:
"6. We have examined the facts of the case placed before us and considered the submissions advanced by both sides. It seems that time and again against the direction Issued by the Hon'ble High court, the Issue pertaining to exercise of option for switching over from CPF to GPF have been considered by the respondents. The proposal regarding one more option to change over from CPF to GPF scheme In respect of technical employees who Joined prior to 01.08.1992 Ilke the applicant has been Initiated by the Head Personnel Division by letter dated 03.07.2006. The same has been re- examined by the department and has not been approved as the last chance to come over to Pension scheme was given to the technical employees, vide OM dated 12.10.2000 which was to be exercised within six months from the date of the said OM. It is also to be seen that the proposal has been initiated in respect of technical personnel of BARC who had joined service prior to 01.08.1992 and not specifically opted to continue In CPF the same has been re-examined by the BARC Personnel Division and confirmed that since no option was exercised by them on confirmation they are automatically deemed to have been opted to Pension scheme on confirmation by virtue of the provisions of the OM dated 17.01.1961. The respondent competent authority has reconsidered the Issue upon recommendations from the committee in respect of transfer of 393 CPF holders to change over to GPF scheme. While considering the said cases, the respondent competent authority, I.e., DP&PW has considered the recommendations dated 11.06/07.2016 of respondents no. 2 & 3 and the financial implications involved at the time of Implementation in consultation with the Department Expenditure also noted that all those employees had opted for CPF scheme on the basis of OM Issued by the department knowing well that the option once exercised shall be final. While considering the same it has been stated that all new entrants to the Government service w.e.f
58 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. 01.01.2004 are also no longer covered by the Old Pension scheme. The proposal of Department of Atomic Energy has been examined in consultation with Department of Expenditure and has been agreed to on 25.01.2017. It is also to be noted that with regard to the employees of the scientific wing who had not exercised their option it is because that the said circular dated 12.10.2000 had not been brought to their notice. Therefore by an administrative decision no objection has been issued for the said Shri A.M.Baskaran to switch over from CPF to GPF Scheme and that too in line with the recommendation of the National Commission for Scheduled Castes. It is to be noted that the applicant who has exercised his option in the year 1991 had taken a conscious decision to opt for the CPF scheme and the same is not in dispute. It is also to be noted that against the direction of this Tribunal dated 03.12.2018 issued In OA 1403/2018, the respondents have passed a detailed speaking and reasoned order dated 07.05.2019 considering all the points raised by the applicant. While passing the said speaking order, it is also mentioned that the said OM dated 12.10.2000 was circulated to all the employees vide circular dated 01.11.2000. The OM was given wide publicity In the IGCAR by displaying on all notice boards and also with copies being endorsed to all Group Directors/Associate Directors/Head of Division/Head of Section and recognized associations. It is also mentioned that in response to the said OM, a total number of 85 technical employees of the particular centre where the applicant was working have exercised their options to switch over from CPF scheme to GPF scheme. However, the applicant had failed to exercise his option to switch over from CPF scheme to GPF scheme as a result continued to remain under the CPF scheme. It is also to be noted that for the first time in the year 2017, the applicant has raised his claim. The contention of the applicant that similarly situated persons have approached this Tribunal and got the relief shows that the applicant is a fence sitter. The applicant himself has admitted that some 59 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. of the employees have approached this Tribunal whose cases has been rejected and thereafter subsequently when they have challenged the order passed by this Tribunal before the Hon'ble High court in WP wherein being a policy decision, the Hon'ble High court has given only directions to consider the case of the petitioners therein which has been considered by the respondent department and the same has been rejected. With regard to the claim of the applicant at par with Mr.O.Ponnlah, Mr.A.M.Baskaran and others, as they are not similarly placed like the applicant, there is no question of parity, It is also to be noted that when the said speaking order dated 07.05.2019 has been challenged by the applicant in the present OA, para VI of the said speaking order has not been specifically disputed except the statement that no notice or intimation was served individually. Para VI of the order dated 07.05.2019 Is extracted hereunder:
"DAE, in consultation with DP&PW, extended one more final option to all technical personnel in the Department who had joined service prior to 01.08.1992 and had not completed 20 years of service and still in CPF scheme to come over to Pension Scheme as a "Special Case", vide OM No.2/1/99/SCS/665, dated 12.10.2000. The option was to be exercised within a period of 6 months from the date of Issue of the OM I.e., on or before 11/04/2001. The said DAE OM was circulated all employees of to IGCAR vide circular No.IGCAR/CPF/P1/2000 dated 01.11.2000. The OM was given wide publicity In IGCAR by displaying on all Notice Boards and also with copies being endorsed to all Group Directors/Associate Directors/Heads of Division/Heads of Section and Recognised Associations. In response, a total of 85 Technical employees of this Centre exercised their options to switch over from CPF scheme to Pensions scheme.
60 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
However, Shri Kumaran, failed to exercise his option to switch over from CPF scheme to Pensions scheme and as a result continued to remain under the CPF scheme."
It is to be stated that the said OM dated 12.10.2000 in which the option has to be exercised within a period of six months, i.e., on or before 11.04.2000, the applicant has raised his objection In the year 2017. Therefore, the applicant cannot have a claim after over a period of 17 years of delay. It is also to be noted that in the matter of policy decision wherein financial Implications are Involved, it is for the employee concerned to raise his right over the said claim in time. The applicant has relied upon the order passed by the Hon'ble Supreme Court in the matter of Dakshin Haryana BIJII Vitran Nigam & Ors Vs. Bachan Singh dated 30.07.2009 wherein the facts are not similar and the ratio is also not same. In the said case, the circular. stating that after regularization of the employee, the service rendered by him on work-charged basis would not be counted for the pensionary purposes has not been made aware to the employee. Therefore after retirement he has made the correspondence and since there is no response filed a writ petition and knocked the doors of the Hon'ble High court for justice. Considering all the aspect and since the department has failed to prove that they have given knowledge about the said circular to the employee, an opportunity has been granted to opt for the said option accordingly. The applicant has also relied upon the order passed by the Hon'ble Delhi High court in the matter of Smt. Shashi Kiran & Ors. Vs. UOR & Ors dated 24.08.2016. Here also the facts and ratio is altogether different. It is to be noted that all the employees have approached the court at the earliest. While allowing the claim of the employees the court has also considered that when benefit of the said particular OM referred in that matter has been extended too all other staff members/employees in their Institutions. Therefore looking 61 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. to the peculiar facts and circumstances in that particular matter, we find that the same is not applicable in the case of the applicant herein.
7. It is observed that according to the judgment relied upon by the learned SCGSC Mr.Su.Srinivasan, i.e., the judgment of the Hon'ble Supreme Court In Krishena Kumar Vs. UOI CDJ 1990 SC 798, the Hon'ble Apex court has declined to Issue any directions in the matter of expenditure includible In the Annual Financial Statement. Similar Issue in respect of the claim of the applicant relates to OM dated 10.12.2000 against the same department this Hon'ble Tribunal in OA No.212/2008, vide order dated 08.05.2008 have observed that "When the rules do not provide this court cannot exercise a discretionary powers to direct the respondents to accept the option exercise by the applicant and grant the benefits to him". The said order has been challenged by the applicant in WP 29371/2008 before the Hon'ble High court of Madras and the Hon'ble High court vide order dated 02.11.2011 upheld the order of this Tribunal. The said order has been tested by the applicant therein before the Hon'ble Supreme Court of India in CA No.26212/2012. While dismissing the SLP by Its order dated 18.10.2013, the Hon'ble Apex court upheld the order passed by this Tribunal as well as the Hon'ble High court. It is also to be noted that in the matter of Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh & Ors in C.A.No.4405/2011, the Hon'ble Supreme Court, vide order dated 12.05.2011 considered the delay in respect of raising the claim over the availability of option. It has been held that a person who is aware of the availability of the option cannot contend that he was not served a written notice of the availability of the option after 22 years. Therefore the failure on the part of the employee to opt for the pension scheme in time will disentitle him, from claiming any benefit under the Pension scheme. It is also held by the Hon'ble Supreme Court of India vide its order dated 13.11.2013 passed 62 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. in CA 7148/2008 in the matter of Calcutta Port Trust & Ors Vs. Anadi Kumar Das & Anr that since the employee has not pleaded that he was not aware about the said OM Itself against which he is claiming the benefit and that being the position it is not possible to accept the plea of the employee that he had not been served with the OM. The Hon'ble Supreme Court of India in CA No. 7483/2014 in the matter of Rajasthan Rajya Vidyut Vitran Nigam Ltd Vs. Dwarka Prasad Koolwal & Ors vide its order dated 07.08.2014 has held thus:
"68. The right of an employee to switch over was, therefore, limited in time by the Pension and GPF Regulations. However, administrative orders issued by the RSEB from time to time extended the period for exercising the option. No employee had any inherent right to either demand an extension of the period for exercising the switch- over option or claim a right to exercise the switch- over option at any time prior to his retirement, and no such right has been shown to us.
69. But, learned counsel for the respondents finally submitted that pension is not a charity or a bounty and an employee is entitled to earn his pension. There can be no doubt about this proposition but when two schemes are available to an employee, one being the CPF Scheme and the other being the Pension Scheme, It is for the employee to choose the scheme that he feels more comfortable with and appropriate for his purposes. No employee can switch over back and forth from one scheme to another as per his convenience. Once an employee has chosen to be a part of a particular scheme, he continues to remain a member of that scheme unless an option to switch over to another scheme is given to him.
63 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
70. Insofar as the present appeals are concerned, the respondents who are members of the CPF Scheme were given several opportunities of switching over to the Pension Scheme and the GPF Scheme under the Pension Regulations and the GPF Regulations respectively but they chose not to do so. The question whether under these circumstances pension is a bounty or a charity becomes completely irrelevant. The entitlement to pension was available to the respondents but they chose not to avail the entitlement for reasons personal to them. Having taken a decision in this regard the respondents cannot now raise an argument of pension not being a bounty and therefore requiring the RSEB to give them another option to switch over to the Pension and GPF Regulations."
It is also to be noted that the Hon'ble Supreme Court of India by their order dated 03.01.2017 in CA No.3842/2011 In the matter of Pepsu Road Transport Corporation, Patiala Vs. Amandeep & Ors has held as under:
"23. In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force 64 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death- cum- retirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/- was due from the advance taken by the respondents from his CPF amount."
It is also to be noted that the Hon'ble Delhi High Court in WP 6747/2014 along with other connected matters in the matter of Rajiv Raizada Vs. UOI & Ors vide order dated 05.07.2021 has held as under:
"101/14.4 Having regard to these crucial facts, the Supreme Court reversed the view both of the 65 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Central Administrative Tribunal and the High Court since the petitioner had failed to exercise his option for switch over within the time accorded in that behalf by the applicable scheme."
8. Admittedly the Issue involved in the matter has attained finality against the employee and the order passed by this Tribunal In OA 212/2008 dated 08.05.2008 In one of the employees case P. Sundaramurthy who is similar to the applicant has attained finality since the said order has been upheld by the Hon'ble Supreme Court of India. Therefore, we are of the considered view that it is a policy matter and the same has been already considered by this Tribunal and attained finality. Hence in view of the said position as well as on delay and latches, the applicant is not entitled for any relief as prayed for. OA'is dismissed. No order as to costs."
35. This decision in the case of V.Kumaran (supra) has not been challenged by the applicant and has attained finality.
We find that the arguments of the applicants herein have been dealt with exhaustively by the Madras Bench of this Tribunal th in OA No.1241/2019 decided on 15 November 2022 quoted above.
36. Moreover, Hon'ble High Court of Judicature of Madras dated 02.11.2011 in the case of P.Sundaramurthy Vs. Union of India & Others, Writ Petition No. 29371 of 2008, the Hon'ble High Court as held in para 4 and para 5 as under:
66 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
4. It is no doubt true that, at the time of entry into service, the option were given to the employees to switch over to pension scheme at any time during the service but before attaining the age of Superannuation. The pensioner opted for Contributory Provident Fund Scheme. An official Memorandum was also issued to that effect. The petitioner exercised his option for change over to the Pension Scheme and according to the petitioner, the same was not considered by the Respondents. Therefore, he gave a representation in that regard to the respondents. Since the same was not considered, he filed OA NO 10/2008 before the Tribunal seeking for a direction to the respondents to accept the option exercised by him for pension scheme. The Tribunal disposed of the said original application with a direction to respondents 1 & 2 to dispose of the representation made by the petitioner for change over.
nd Pursuant to the same, the 2 respondent, by order dt 11.2.2008, rejected the request of the same, the ground that there was no provision for extending another entitled to switch over to the pension scheme. option and that the petitioner was not entitled to switch over to the pension scheme.
5. A Perusal of the order under challenge shows that only after considering the representation submitted by the petitioner for switch over, the respondents 1 and 2 have rejected the same on the ground that there was no provision for extending another option. On the basis of the entire materials available on record, the Tribunal dismissed the original application stating that, when the rules do not provide for the same, the court has no power to grant the relief prayed for by the petitioner herein. We perused the materials available on record. The petitioner has submitted his representations for change over to the pension scheme on 01.02.2006, 01.11.2006, 12.10.2007 & 03.12.2007. Since the representations were not considered he filed OA No 10/2008 seeking for a direction to respondents 1 and 2 to dispose of the said representations since he was due to 67 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. retire on attaining the age of Superannuation on 31.01.2008. However, it is seen from the official memorandum dt 12.10.2000 issued by the Government of India, Department of Atomic Energy that, option has to be exercised within a period of six months from the date of issuance of the said official Memorandum. The petitioner without exercising the option within the time stipulated therein had given representations commencing from the year 2006 i.e. long after the issuance of the said official memorandum and since the same were not considered favourably, he filed the above original application one after the other, in the year 2008. We find from the materials available on record that the respondents, only after considering the case of the petitioner, had rejected the request of the petitioner. On re- appreciation of the entire material available on record, we are of the opinion that the Tribunal had not committed any error in passing the order under challenge. Therefore, we find no ground to interfere with the same and the writ petition is dismissed, No costs."
(emphasis supplied) The SLP filed against the above judgment of Hon'ble Madras High Court has been dismissed by the Hon'ble Supreme Court on 18/10/2013.
37. The Jabalpur Bench of Tribunal in OA No.201/00706/2017 decided on 15.11.2018 and also the decision of Hon'ble High Court of Madhya Pradesh dated 16.07.2014 in Writ Petition No.9146/2012 in which the Hon'ble High Court has upheld the decision of Jabalpur Bench of CAT 68 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. dated 09.05.2012 in OA No.886/2009 as well as the order passed in RA No.06/2012 on 26.06.2012 are also relevant. The Hon'ble High Court of Madhya Pradesh as well as the Jabalpur Bench of this Tribunal have considered the decision of this Tribunal in OA No.211/2004. It will be convenient to extract the relevant part of the judgment of the Hon'ble High Court as under:
"2. Briefly stating the facts as pleaded by the petitioner are as follows :
"The applicants, who had joined the service in 1989 in Technical stream at Raja Ramanna Centre for Advance Technology (in brevity "RRCAT" ), Indore exercised there option, in favour of continuing with Contributory Provident Fund (in brevity "CPF"), on confirmation to the post in 1991 and 1992. The Department of Pension & Pensioner Welfare (in brevity DPPW), Page no. 2 vide its circular dated 12/10/1992 (Annexure A/7) gave another option to the Scientific and Technical Personnel and Department of Space, Department of Atomic Energy and Department of Electronics, for change over from CPF Scheme to Pension Scheme. This OM provided that, for the Scientific & Technical (in brevity S & T) Personnel of these departments, in case of those, who have not completed 20 years qualifying service on 01/08/1992, and are still under CPF scheme on that date, will have an option to be exercised any time, but not later than completion of 20 years qualifying service, to switch over from CPF to Pension
69 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Scheme. This circular was, however, revised vide OM dated 23/07/1996 (Annexure-A/9) of DPPW, bringing status-quo-ante, as prevailing prior to the issue of these orders, in respect of the pensionary / terminal benefits to S & T Personnel in the three departments, who, were in service as on 01/08/1992. In order to give another opportunities to the S & T Personnel of Department of Atomic Energy, who joined service prior to 01/08/1992, and Page no. 3 had not exercised option to come over to pension scheme, the department of Atomic Energy, vide OM dated 12/10/2000 (Annexure R/1) give another option to come over to Pension Scheme. This option had to be exercised within a period of six months from the date of issue of this OM. The applicants did not use any of these opportunities within the available time limit. However, they submitted their options for change over to pension scheme in 2002, which were rejected by the respondents vide their letter dated 21/12/2003 (Annexure A-14)."
3. Matter has been examined by the CAT having taken note of the various circulars, which has been relied upon by the petitioner, however, the Tribunal did not find favour with the submissions made on behalf of the petitioner. Relevant observations made by the CAT are available in para 7 of the impugned order, which is reproduced hereunder for the sake of reference as also for the sake of facilitation to understand the real grievance of the petitioner.
"In this case, the applicants were provided opportunity to change over to pension scheme, first vide DPPW's OM dated 12/10/1992, which was available Page no. 4 till its amendment vide subsequent OM dated 23/07/1996, and thereafter, vide OM dated 22/10/2000 ( Annexure R-1) of the Department of Atomic Energy.
70 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
The applicants did not avail any of these opportunity. Regarding the contention of the applicants that they are being discriminated, as their juniors who joined service on or after 01/08/1992 are entitled to exercise the switch over option any time before completion of 20 years of qualifying service, while they are being denied this facility, the respondents have cited the judgment of Hon'ble Apex Court in UOI Vs. P.N. Menon, 1994 SCC ( L&S)860, wherein it is held that " any revised scheme if implemented with a cut of date, which can be held to be reasonable and rational need not be held to be invalid".
The S & T Personnel joining on or after the cut of date of 01/08/92 are entitled for exercising the option upto completion of 20 years of qualifying service, while those who joined before the cut of date, are to be treated according to the instructions prevailing prior to the issue of OM dated 12/10/92.
Page no. 5 According to the DPPW's OM dated 23/07/1996, status-quo-ante as existing before OM dated 12/10/1992 was to be maintained in their cases. Therefore, their options were to be governed by the OM dated 17/01/1967 of Department of Atomic Energy which was applicable before OM dated 12/10/1992. It provided for only one option, "exercisable within three months from the date of order appointing such an officer to a permanent post". In accordance with this OM, the applicants submitted their options in favour of CPF in 1991, 1992. According to OM dated 17/01/1967, there was no provision for change of option during their entire service period. However, the Government provided them another opportunity to switch over in 1992, and thereafter in 2000, but the applicants did not use any of these opportunities. Now, no such window is available to them. The applicants can not claim parity with these joining the service after 01/08/1992, as the Government has 71 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
consciously given this facility to those Page no. 6 joining after the cut off date of 01/08/1992. Since, the applicants joined before the cut offi date their options will be governed by the rules/ regulations/ circulars applicable at that time.
4. In so far as the learned counsel for the petitioner has submitted that in similar circumstances, Bombay Bench of this Tribunal in O.A. no. 211/2004 took a different view contrary to the decision of the CAT in this case, however, the issue with respect to the Bombay Bench decision has been discussed by the Tribunal in para 8 of the impugned order, which is also reproduced hereunder for the sake of reference " As far as the opportunity of the decision of Bombay Bench of this Tribunal in OA no. 211/2004 is concerned, it is distinguished, as its facts and circumstances are different from the case of the applicants. In tht case, an option for switching over to pension was given by the applicant on 08/04/1993, which was subsequently withdrawn on 27/04/1993. Since the OM dated 12/10/1992 (Annexure- A/7) provided that those who have already opted for pension scheme will not have any further option to re-opt in favour of Page no. 7 the CPF scheme, the acceptability of this withdrawal was an issue before this Tribunal. The applicants in the present OA did not give any option for switch over to pension, until 2002, when all the opportunities provided by the respondents for giving such options, were already over. In view of the aforesaid, we do not find any reason to interfere in the matter at this stage. "
5. A review application filed by the petitioner against the order of the Tribunal also met with the same faith.
6. We have also gone through the memorandum dated 30th of May, 1997, on which much reliance has been placed by the petitioner's counsel. Reliance is made on Clause-3 of the aforesaid circular. Aforesaid circular makes it clear that if the person who joined the service 72 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
st prior to 01 August, 1992, has completed 20 years of qualifying service as on 01st of August, 1992, then the said circular is applicable to them. It is not the case in hand.
7. We have also gone through the office memorandum dated 09th of July, 2009 ( Annexure-P/3) which was in fact original memorandum and which was made subject matter of the decision before the CAT. The said Page no. 8 circular is absolutely clear in all respect and leaves no room for doubt for understanding the intention of the Government. The sake circular for the sake of reference is reproduced hereunder :
OFFICE MEMORANDUM Subject : Grant of one more option to administrative / accounts / auxiliary employees of D/o Atomic Energy under CPF Scheme to switch over to Pension Scheme - reg.
The undersigned is directed to refer to Department of Atomic Energy's D.O. Letter no. 10/1(1)/2005- SCS/104 dated 6th May, 2009 and this Department's OM of even number dated 6th July, 2009 on the above subject.
2. Further the matter regarding grant of one more option to switch over from CPF Scheme to GPF-cum- Pension Scheme to the administrative and auxiliary employees as well as Technical personnel of DAE who are still continuing in the CPF Scheme wasa discussed in the Chamber of Secretary ( Pension, Page no. 9 AR&PG ) when Shri A.P. Joshi, Addl Secretary of D/o Atomic Energy has requested this Department to finish the background of option to switch over from CPF Scheme to GPF-cum-Pension Scheme to the administrative and auxiliary employees as well as Technical personnel.
73 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
3 In this regard, it may be stated that various organizations have demanded from time to time one more option to switch over from CPF Scheme to GPF-cum-Pension Scheme to the administrative and auxiliary employees as well as Technical personnel working in other Ministries / Departments / Autonomous Bodies/ PSU. The matter was examined in this Department and also at different form such as Committee of Petition ( of Parliament ) National Council of JCM and in Vth Central Pay Commission.
4 The demand for granting another option has not been accepted primarily in view of the following implications:-
(i) The demand if agreed for one organization, the similar benefit Page no. 10 would have to be extended to all the CPF beneficiaries whose number can be quite substantial. The numbers of such beneficiaries were 60,000 in Ministry of Railways alone, Apart from Central Government, a large number of autonomous Bodies exist under various Ministries/ Departments. As per the Comptroller & Auditor General's Audit Report of 2000, 496 such autonomous institutions were in existence. The actual number of the institutions is likely to be more. Since 1987, the Ministry of Finance has, as a matter of policy, not been allowing Central Government Pension Scheme in these organizations. Granting another option to the Central Government CPF optees to switch over to pension scheme would have had repercussions in these organizations as 74 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
well. In case this dispensation was to be extended to all CPF / SRPF retirees (whose number exceeds 60,000) the financial implication on payment of pension alone would be Rs. 350 crores approximately per annum. The expenditure on payment of family Page no. 11 pension to eligible family members of deceased CPF/ SRPF retirees would be another Rs. 175 crores approximately per annum. The implication would have gone up still higher if employees of autonomous bodies / PSUs, presently governed by the CPF Scheme, also had to be brought under the Pension Scheme.
th
(ii) The 5 Pay Commission also received various representation asking for one more option to switching over to GPF Scheme.
The Pay Commission observed in para 137.43(h) that CPF/ SRPF retirees have already been given adequate number of options to switch over to pension scheme as and when substantial improvements were made in the Pension Scheme. The demands for another option to switch over to the pension scheme on their refunding the contribution made by the Government are not accepted.
(iii) As a measure under Pension Reforms, Government has introduced New Pension Scheme.
(Defined Contributory Scheme) w.e.f. Page no. 12 1.1.04 as the defined benefit scheme has been financially unsustainable for the Government. Therefore, the Government is not inclined to enhance is liability of pension 75 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
by introducing CPF beneficiary also to the GPF (Pension) Scheme.
5. In view of the facts and circumstances explained above, this Department has not agreed to provide one more option for CPF beneficiaries to come over to Pension Scheme (GPF Scheme) in view of the following :-
th
(i) The 5 Pay Commission did not support the proposal for extending one more option.
(ii) Department of Expenditure also concurred with Department of Pension & PW in not permitting another option.
(iii) Committee on Petitions (of Parliament) has also not accepted the demand for granting another option.
(iv) It is now an established policy of the Government not to grant another option.
(v) Accepting the proposal will cause spiin off effect in other Page no. 13 departments also and will open floodgates for representations from similarly placed personnel including retired and from family members of those who died.
(vi) It will lead to mounting financial burden of pension liability as the financial liability on existing pension scheme has almost reached unsustainable level.
(vii) Government has announced New Pension Scheme aiming at reduction in quantum of pension payable to existing pension / retiring employees. The proposal, if 76 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
accepted, will contradict the objectives of the New Pension Scheme.
6. This is for information of Department of Atomic Energy.
(M.P. Singh) Director.
8. While parting with this argument, learned counsel for the petitioner has also submitted that since they are before us under Article 226 of the Constitution of India, they have a limited prayer and they cannot argue in detail even with respect to the conduct of the Department and that they want the matter to be remanded back to the Tribunal.
Page no. 14 However, taking into consideration the time lapsed and the discussion as above which goes to show that the issues have been dealt with by the Tribunal and all the various memorandum has been discussed, we do not find it appropriate case to remand back to the Tribunal, therefore, we do not agree with the aforesaid request made by the learned counsel for the petitioner.
9 In view of the aforesaid discussions, we do not find any infirmity in the impugned order as well as the order passed in Review Application by the CAT.
Consequently, present Writ Petition is dismissed. C c as per rules."
38. Thereafter, the Jabalpur Bench of this Tribunal dealt with similar issue in the case of Girja Shankar Purbia Vs. Union of India in OA No.201/00706/2017 vide order dated 15.11.2018 held as under:
77 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
"8. It is admitted fact by the applicant that the applicant had not exercised option, within prescribed 6 months from the date of issuance O.M. Annexure A-2. Although the applicant exercised his option at the time of his confirmation but later on the applicant has not exercised his option for switching over from CPF to GPF/Pension Scheme in the prescribed period as per Annexure A-2. The main ground for challenging the action of the respondents is, that the representation of the applicant was rejected by DAE on 12.12.2003 (Annexure A/14), that the said O.M. dated 12.10.2000 (Annexure A/2) has not given wide publicity and due to this reason the applicant could not know about the period to exercise his option. The respondents on the direction of this Tribunal has filed the affidavit dated 20.06.2018 qua the fact regarding exact measure taken by the respondents to give wide publicity to the O.M. dated 12.10.2000. In this affidavit, the replying respondents has specifically stated that vide O.M. dated 12.10.2000 had extended one more final option to all the technical personnel of the DAE who joined service prior to 01.08.1992 and have not completed 20 years of qualifying service and are still in CPF to come over to pension scheme as a special case within a period of 6 months from the date of issuance of this O.M. It has been specifically stated in this affidavit that the aforesaid O.M. has been given wide publicity vide endorsement dated 24.10.2000 (Annexure R/5). It has been further submitted by the replying respondents that the copy of the above endorsement was not only displayed on all notice boards of RRCAT but also forwarded to all Head of Divisions/Sections/Labs and President, CAT Staff Association. It has been further submitted that in response to above endorsement, 15 Technical personnel and 6 Scientific personnel (initially appointed under the Technical Cadre prior to 01.08.1992) and later on promoted to Scientific posts (Annexure R/8) of RRCAT, had shown their willingness and opted to switch over to pension scheme against the 78 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
O.M. dated 12.10.2000. So, there were total 1170 personnel working in RRCAT as on 30.11.2000, in which 384 scientific, 549 technical and 237 administrative and auxiliary personnel were working. So, it has been particularly mentioned in Para 5 of the said affidavit that the list of 14 employees (Annexure R/10) who did not opt to switch over to pension scheme and retained in CPF against O.M. dated 12.10.2000. So, it is also clear from the affidavit of the replying respondents that wide publicity has been given regarding the O.M. dated 12.10.2000 and it is clear from the affidavit of the replying respondents that many personnel have opted for pension scheme as per O.M. dated 12.10.2000 (Annexure A/2). So, the submission made by the applicant that there was no wide publicity regarding Annexure A/2 O.M. dated 12.10.2000 is not sustainable and that cannot be believed at all.
9. The second ground for challenging the action of the respondent is that the other sister organizations of the respondent- department had provided another chance to opt for the said scheme. Regarding this the replying respondents had relied upon the judgment passed by Hon'ble High Court of Madhya Pradesh vide Writ Petition No. 9146/2012 dated 16.07.2014 whereby the Hon'ble High Court has upheld the decision made by this Tribunal in O.A. No.886/2009, whereby the same question arose regarding seeking the benefit of pension scheme as available to employer of sister organizations. It is pertinent to mention that the Hon'ble High Court has rejected the claim of the petitioner in the said Writ Petition and decision of this Tribunal has been upheld.
10. In view of the above, we are of the view that there is no merit in this O.A. and resultantly, this O.A. is dismissed. No order as to costs."
39. The issue in hand is fully covered by the law as 79 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. referred to above.
40. Counsel for the applicant however relied upon the Division Bench of the Hon'ble Delhi High Court in LPA No.410/2014 and in a batch of cases, titled Smt. Shashi Kiran and Others Vs. Union of India and Others, considered an identical issue and allowed the claim of the employees vide common Order/Judgment dated 24.8.2016. In paras 17, 19 and 20 of the said Order/Judgment, the Hon'ble Delhi High Court has ruled as under:-
"17. This court is of opinion that the submissions of the University, the appellant, in regard to the Virmani's order, have no force. There is no denial and there can be none- that the nature of the scheme contemplated by the 01.05.1987 notification was to ensure that only those wishing to continue in the CPF scheme had to opt to do so.
A default in that regard, meant that the employee not filling his option (to continue in CPF) was deemed to have "come over" or migrated to the Pension Scheme. The University and the official respondents (UGC, Central Government etc) had urged that the petitioners in the Virmani group are deemed to have accepted the CPF benefits, because they allowed deductions from their monthly salaries during the interregnum and permitting Pension 80 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
Scheme benefits would not be fair; in the same breath it was urged that there was delay. This court is of opinion that the University - and the respondents are relying on contradictory pleas. If they urge that the true interpretation of the 1987 circular meant that anyone not furnishing an option to continue in the CPF scheme is deemed to have opted for the Pension Scheme (as the Virmani group undoubtedly did) there is no way they can succeed on the ground of laches or estoppel. If plain grammatical meaning of the language of the May 1987 OM were to be given, all those who do not opt would automatically be borne in the Pension Scheme. Such being the position, the argument that the petitioners in Virmani allowed deduction of CPF amounts from their salary, cannot be argued against them. CPF schemes typically require employees to commit greater amounts than in GPF scheme, on a monthly basis. That these staff members allowed higher amounts, which were held under a scheme (and which earned interest), the benefit of which had not accrued and was not available to them till the date of superannuation, cannot be urged against them. Likewise, the question of laches would not arise, because at the most, pension would not be allowed for the entire period, given that in matters of pension (see Union of India & Ors. V. Tarsem Singh (2008) 8 SCC
648) there is a continuing cause of action.
Therefore, we find no infirmity with the learned Single Judge's order, in Virmani's case.
19. It is argued by the learned counsel for the University that once the learned Single Judge held that extension of the option was not authorized, 81 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
there was no question of granting relief.
Furthermore, in respect of those who had not opted for CPF, but whose contributions continued in the scheme, the court should not have granted relief, given the passage of time and the voluntary conduct of the teaching staff and officials. It was urged that the learned Single Judge erred in relying on Union of India v. S.L. Verma (2006) 12 SCC 53; in any case, the observations relied on were mere passing remarks, in the nature of obiter and clearly had no binding effect. On the other hand, the learned Single Judge, urged the Appellants' counsel, fell into error in not relying on Kendriya Vidyalaya Sangathan & Ors v Jaspal Kaur & Anr (2007) 6 SCC 13 and Union of India and Ors v M.K. Sarkar (2010) 2 SCC 59.
20. This court is of the opinion that no infirmity can be found with the approach or reasoning of the learned Single Judge, in allowing the respondents' petitions. The learned Single Judge made a factual analysis, in this category of teaching staff. The chart, prepared for the purpose, and extracted at Para 3.1 of the judgment in this batch (N.C. Bakshi v Union of India WP 5310/2010) shows that all the employees opted for the CPF benefits, after the cut- off date. It was because of this and the expressed stand of the UGC- and the University that the learned Single Judge concluded that notwithstanding the so called option, exercised in terms of the extensions given, the writ petitioners could not be denied the benefit of the Pension Scheme because they were deemed, by the OM of 01.05.1987 to have opted for it, by default. Having regard to these facts, the appellants could not have 82 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
urged that the benefit of the Pension Scheme should have been denied to these class of petitioners/teaching staff. Therefore, we are of opinion that there is no infirmity with the impugned judgment of the learned Single Judge. The University's appeals, therefore, deserve to fail."
41. The facts in Shashi Kiran's case are entirely different. It pertains to employees of the Delhi University.
They were governed by the OM 01.05.1987, whereas the applicants were not. A separate scheme was issued for the employees of the Department of Atomic Energy.
42. An identical issue came before the Hon'ble High Court of Judicature at Madras in R. Renukadevi Vs. The Commissioner, KVS and others. In the said case, at the time of joining the services in the KVS, there was no pension scheme for KVS employees, however, after 4th Pay Commission, the Pension Scheme was introduced vide Office Memorandum dated 1.9.1988. As per which employees joining service in the Sangathan on or after 01.01.1986 shall be governed only by the G.P.F Scheme and will have no option for the C.P.F. Scheme. However, for all C.P.F. beneficiaries, 83 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. who were in service on 01.01.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the pension scheme. By the deeming clause, the petitioner therein was under the impression that she had been brought into the Pension Scheme. When the same was denied to her, the petitioner therein approached the Madras Bench of this Tribunal by filing Original Application No.1166/2013. On behalf of the KVS, it was contended that an option was given to the KVS employees to switch over from C.P.F. Scheme to Pension Scheme in 1988 but the petitioner therein continued to be in the C.P.F. Scheme without demur and she cannot seek for pension under the Pension Scheme as she had not expressed any option after introduction of Pension Scheme in the year 1988. The Tribunal dismissed the said Original Application on the ground that petitioner continued till the date of retirement with the CPF Scheme and her case was distinguishable from the case covered by the judgment relied upon by her. The Hon'ble Madras High Court set aside the aforesaid Order of the Madras Bench of this Tribunal and 84 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. directed the respondents to convert the pensioner under GPF Scheme forthwith, calculate and pay the revised pension including the arrears for which, he became eligible by such conversion and the petitioner therein was also directed to refund the amount received by him towards CPF Scheme with 9% p.a. interest from the date when he received till the date of payment and making it clear that arrears of pension payable to the petitioner therein under GPF Scheme may be adjusted towards refund of the P.F. amounts received by the petitioner with interest and also that in the event of not realizing the entire amount, the remaining portion amount may be refunded by the petitioner. Paras 9 to 11 of the said judgment of the Hon'ble Madras High Court read as under:-
"9. Further, the Delhi High Court in "Smt.Shashi Kiran and others versus Union of India and others"
etc., reported in 2016 SCC OnLine Del4819" has dealt with the issue in extenso and finally held that even if an option exercised by the employees, they would still be entitled to request for change of option to pension scheme in view of subsequent developments and change in socio and economic scenario.
10. Even going to the extent of holding that she had 85 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
exercised her option in favour of Central Provident Fund Scheme, such exercise of option was not valid and subsisting in view of subsequent social and economic development. It is also to be seen from the decision of the Delhi High Court that several employees have been allowed to switch over from CPF to pension scheme even after the exercise of option originally in favour of the CPF scheme. Such being the case, singling out a few employees in some departments on an erroneous understanding of the office memorandum dated 01.09.1988, would be per se discriminatory and hence consequentially impermissible.
11. In the above circumstances, the learned Tribunal has not appreciated the claim of the petitioner in proper perspective with reference to the above said office memorandum and decisions cited on behalf of the petitioner. The learned Tribunal was misguided by the fact that the petitioner continued to remain under CPF scheme without due appreciation of the fact that all employees, on introduction of the pension scheme in 1988, deemed to have come under pension scheme. Merely because the petitioner continued to contribute to the CPF scheme, her right to get pensionary benefits under the pension scheme cannot stand negatived, as the right which falls for consideration before us is the constitutional right to equal treatment, as envisaged under Article 14 of the Constitution of India."
Again, facts of the present case are different. Since herein there was no deeming clause as in the case of KVS.
86 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
43. Before the Hon'ble High Court of Judicature at Madras in the case of Union Of India vs S. Subbiah in Special Leave to Appeal (C) No(s) 28825-28827/2017 decided on 02.03.2020, came a case where, the employees exercised their option to remain with C.P.F. Scheme, however, subsequently, they submitted representations that they should be brought under the Pension Scheme as they did not exercise their option before the cut of date, i.e., 30.9.1997, petitioners (original respondents) before the Tribunal resisted the claim of the employees on the ground that once the employees have chosen their exercise consciously, they cannot re-assail their position subsequently and claim pension under the Pension Scheme. The Madras Bench of this Tribunal placed reliance on the decision of the Hon'ble Supreme Court in S.L. Verma in para 9 of its order as well as the decision of the Hon'ble High Court of Delhi in Dr. R.N. Virmani and others Vs. University of Delhi and another and allowed the Applications filed by the employees and the Hon'ble Madras High Court dismissed 87 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. the said Writ Petitions vide common Order/Judgment dated 5.1.2017, paras 14 thereof reads as under:-
"14. This Court, after hearing the arguments on either side, gave its anxious consideration with reference to the pleadings and the decisions of the Hon'ble Supreme Court and the decision of the Delhi High Court. The natural conclusion emanated from our anxious consideration will only lead to hold that the respondent employees despite their option to remain in CPF Scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. Firstly, the said option given during the time of extended period has no sanctity in law. Secondly, such option given by the employees cannot be held against them in view of the fact that several similarly placed employees of the Central Government were allowed to switch over to the CPF Scheme, meaning that no seriousness attached to the cut of date prescribed originally by the Official Memorandum dated 1.5.1987. If these employees were denied pension in the facts and circumstances, it would certainly amount to discrimination, which per se constitutionally impermissible. Moreover, the decision of the Delhi High Court cited supra and the contentions which were extracted above, would unequivocally support the claim of the respondent employees notwithstanding the fact that whether they exercised their option or not."
44. From the above, it could be seen that the employees who have originally opted to remain in CPF 88 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. Scheme and switched over to Pension Scheme because the same was more beneficial to them, the Court has held that non-grant of better benefits by way of pension and denying the same to one set of employees per se discriminatory notwithstanding the option exercised by the employees to remain in CPF scheme which was given during the extended period, are entitled to seek pension under the Pension Scheme.
45. It may be relevant to refer to the Judgment dated 17.1.2019 of the Hon'ble High Court of Judicature at Bombay in Writ Petition No.1331/2007, titled Amita Ajit Desai and others vs The Director (I and Q/C) & Anr. In the said case, the Hon'ble High Court was concerned with the petitioners, who had retired in the years 2006, 2009, 2011 and 2015 and relief was granted by the Hon'ble High Court, governing the petitioners therein under Central Civil Services (Pension) Scheme, 1972, paras 11, 12 and 13 thereof read as under:-
"11. The controversy is no longer res integra. In the case of Union of India & Anr. Vs. S.L. Verma & Ors., the Hon'ble Supreme Court had an occasion to consider the very same Office Memorandum. It will be helpful to refer to paragraph 7 of the said 89 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
judgment of the Apex Court which reads as under :-
"7 The Central Government, in our opinion, proceeded on a basic mis-conception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created. Only OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards(Terms and Condition of Service had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal fictions, as noticed herein-before, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of 90 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
such legal fictions, it will bear repetition to state, the respondent nos.1 to 13 would be deemed to have switched over to the pension scheme, which a fortiori would mean that they no longer remained in the CPF scheme."
12. On perusal of the aforesaid observations of the Hon'ble Apex Court, it is clearly revealed that by reason of the said Office Memorandum dated 1st May 1987, a legal fiction was created. It has been held that only when an employee consciously opted to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It has been held that if no option is exercised by an employee, prior to the date specified in the Office Memorandum dated 1st May 1987, the employee shall be deemed to have automatically come over to the Pension Scheme.
We find that the aforesaid directions of the Hon'ble Apex Court would clearly cover the case of the applicant. Undisputedly, applicant did not opted for the CPF Scheme under the Office Memorandum dated 1st May 1987. In that view of the matter, we find that in view of the Office Memorandum dated 1st May 1987, the petitioners would be deemed to be covered by the Pension Scheme.
13. I am of the considered view that once issue has been considered and the same has been allowed by the Hon'ble High Courts after considering the various judgments of Hon'ble Supreme Court, including in the case of Jaspal Kaur (supra) and objection of limitation and law thereon, the judgments of the Hon'ble High Courts would be binding. Accordingly, I am of the considered opinion 91 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
that the applicant is entitled for conversion from C.P.F. to G.P.F. and the applicants' claim is not barred by limitation, delay and laches".
46. Consistently, the Hon'ble Apex Court and the Hon'ble High Courts have held the DOP&T Scheme dated 01.05.1987 as a scheme that requires specific and express option from the employee to continue in CPF. In some cases where the specific options were given even those employees have been allowed to switch over subsequently.
47. In the present case, however, applicants are of the Technical cadre of DAE. The OM of 01.05.1987, did not apply to the applicants since a separate scheme was envisaged.
Therefore, the applicants cannot derive any benefit from the decisions relied upon by them above.
48. In the present case, applicant Shri Deoram Bavbande, had initially joined in Bhabha Atomic Research Centre (BARC) as Tradesman/B (a technical post) with effect from 05.02.1982. On his initial appointment, the Applicant was admitted under CPF Scheme. Subsequently, the Applicant was appointed in a substantive capacity 92 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018. (confirmed) as Tradesman/D with effect from 01.04.1989 vide Confirmation Order No.2(4)/89/Conf.Cell/199 dated 12.10.1989. Having understood the complete advantages and disadvantages of Central Provident Fund (CPF) and General Provident Fund (GPF), the Applicant on his confirmation exercised his option to retain "Contributory Provident Fund' vide option dated 25.10.1989.
49. The OM dated 12.10.2000 was displayed on the notice board and 116 employees working in the same office as the applicant have submitted their option. The case of the Applicant, is therefore, distinct from that of Shri A.M. Baskaran as the OM dated 12.10.2000 was circulated among all the employees of BARC, and in pursuance to the said OM, 170 employees of BARC had opted for conversion from CPF scheme to Pension Scheme. The Applicant could have availed this opportunity to switch over to Pension Scheme but, he failed to utilize the opportunity extended as a "special case" by choosing not to respond to the OM, when 170 of his colleagues had exercised their option.
93 OA No.808/2017, 611/2017, 672/2017, 739/2017, 766/2017, 783/2017, 784/2017, 785/2017, 799/2017, 800/2017, 801/2017, 804/2017, 805/2017, 806/2017, 809/2017, 810/2017, 24/2018, 194/2018 & 196/2018.
50. The other important aspect to be considered is that respondents had formed a committee, to address the issue.
The committee recommended affording one final opportunity to the employees. The recommendation was considered by the competent authority. Upon considering the financial burden, the recommendation was rejected. The financial aspect of the matter is purely an administrative and policy decision. The Tribunal cannot interfere in the same. We do not find any illegality or arbitrariness in the order passed by the respondents while considering the recommendations of the committee.
51. Upon considering all relevant issues and the facts, the case of the Applicants, cannot be allowed and the same are dismissed. Pending MAs, if any, also stand closed.
No costs.
(Shri Krishna) (Harvinder Kaur Oberoi) Member (A) Member (J) kmg/dm.